from the this,-unfortunately,-WAS-expected dept

Judge Scheindlin's motion asking the Second Circuit Court of Appeals to withdraw its orders until she's been given a chance to defend herself against its allegations of impropriety and bias has been declined.

As unusual as the court's decision to remove her from the controversial case was, Scheindlin's motion was even more so. The Second Circuit's decision doesn't spend much time revisiting its own unusual actions (that's handled in a separate opinion), and instead simply notes that Scheindlin really doesn't have much, if anything, in the way of seeking recourse for her sudden removal.

A brief revisiting of the events leading to Scheindlin's removal sets the stage:

After some delay, the City sought, in the District Court, to stay those remedies until a decision on the merits had been reached by the Court of Appeals in the normal course. Judge Scheindlin denied that motion and, as is the normal practice, the City renewed its request for a stay in this Court. We held extended oral argument and, on October 31, 2013, granted the motion for a stay during the pendency of the appeals and, based on the record of the proceedings in the District Court and Judge Scheindlin’s participation in media interviews, reassigned the cases to a different district judge, to be chosen randomly, in order to avoid the appearance of partiality.

The problem with this recitation is that it assumes the basis for the court's removal of Scheindlin is solid. Obviously, the court that removed her would believe so, but that's a tough sell elsewhere -- especially when it relies so heavily on three interviews (linked to in my previous post) that don't seem to give the same impression to other readers that it did to these three judges. As for the matter of nudging a plaintiff towards filing a case as related (the Floyd v. New York case), that claim relies on a couple of quotes from a lengthy proceeding and her instruction to mark this case as "related" so it would route to her is something other judges have stated they would have done in the same position. Adding it all up, the entity displaying the most impartiality seems to be the Second Circuit Court itself.

Having decided her removal was merited, the court moves on to why it won't be entertaining any arguments otherwise. Very simply, there's no procedural basis for either of the motions filed on her behalf -- either representing herself or having her legal reps appear as amicus curiae. (Yes. Her legal team did that as well.)

We conclude that Judge Scheindlin’s motion lacks a procedural basis. As explained more fully in our separate opinion concerning the merits of the order of reassignment, the cases were reassigned not because of any judicial misconduct or ethical lapse on the part of Judge Scheindlin—as to which we have expressly made no finding— but solely pursuant to 28 U.S.C. § 455(a). Section 455(a) provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify [her]self in any proceeding in which [her] impartiality might reasonably be questioned.” We know of no procedural mechanism that might permit a district judge to come before us and argue on her own behalf in these circumstances, nor has Judge Scheindlin identified one.

In other words, Scheindlin should have recused herself at some point due to an appearance of impropriety or partiality that even the Second Circuit court has "expressly made no finding" in terms of the merits of those claims. And since she failed to do so at the merest hint of this "appearance," the circuit court did it for her.

Further arguments against Scheindlin's motion fall along the lines of "This sucks for you subjectively, but that subjective suckage isn't reason enough to generate a bunch of new precedents for these situations. Try not to take it personally."

We know of no precedent suggesting that a district judge has standing before an appellate court to protest reassignment of a case. While a district judge may believe that he or she has expended a great deal of effort and energy on a case, only to see it reassigned, reassignment is not a legal injury to the district judge. Rather, reassignment allows the courts to ensure that cases are decided by judges without even an appearance of partiality. A district judge has no legal interest in a case or its outcome, and, consequently, suffers no legal injury by reassignment.

To the extent that Judge Scheindlin seeks to defend herself against the suggestion of violation of the Code of Conduct for United States Judges, our accompanying opinion explains that we have made no findings that Judge Scheindlin has committed judicial misconduct, nor have we suggested that she has abdicated any of her ethical responsibilities. Rather, we have simply concluded that the appearance of her impartiality might reasonably be questioned. We therefore need not consider Judge Scheindlin’s argument that she ought to be afforded an opportunity to contest charges of judicial misconduct.

While I disagree with the court's assessment (which it continues to assert is not an assessment) of Scheindlin's bias, I really can't argue with its refusal to allow Scheindlin to defend herself against the allegations it repeatedly claims it never raised. The underlying basis that a presiding judge has no legal interest in the outcome of cases, and therefore suffers no legal injury when booted off cases, is a good baseline to uphold. Anyone concerned about "activist judges" should be pleased to see that Rule 21 (the Rule applied to remove Scheindlin) doesn't provide forcibly "recused" judges an avenue to argue their way back into a case they likely shouldn't be handling. This court's decision to boot Scheindlin may have a weak basis, but allowing this novel form of redress to get its foot in the door will only lead to further regrettable activity down the road.

This isn't to say I agree with the decision to remove Scheindlin -- just that I agree with the reasoning behind the denial of her motion. Scheindlin is correct in her assessment that she will suffer reputational damage from the circuit court's actions, and it would be great to see some avenue of recourse opened up for her, but an unprecedented en banc hearing (or her lawyers' somewhat bizarre "appearance as amicus curiae") isn't the right course to take -- not if we don't want every Rule 21 removal to devolve into judicial "naked mudwrestling."

The small positive aspect of this rejection is that the court claims it's playing it safe by removing Scheindlin at this merest appearance of partiality. If so -- if its assertions that it "makes no findings" as to her alleged bias and impropriety are true -- then any attempts to get the court to reverse the decision by using this removal as leverage will be ignored, and the appeals will simply be considered on their legal/constitutional merits alone. If not -- if the court has allowed its forced recusal to color its perception of Scheindlin's decision -- then this case will be booted back to the district court for reconsideration -- or overturned completely -- in record time.

Shows how the "legal system" really works.

The few who try to change it are shunted off with whatever degree of "unusual" procedure is necessary. As a practical point, it's used seldom as possible, but it's absolutely going to be done.

We need another Franklin Roosevelt to boldy use the power of gov't against the "malefactors of great wealth", because the visible parts of the system are utterly under control of The Rich (and billionaire Bloomberg is directly behind this, though only one of the 1% which always wage the class war).The freedoms you take for granted today were death penalty treason in 1776. Don't let the Inherited Rich restore feudalism. Pull them down with high taxes on unearned income -- and ZERO taxes on wages, they HATE that!

perhaps now Sheindlin will recognise that even judges can be bought, can be bias, because this has to smack of interference by an ousted party! perhaps she will also now recognise that not all judges deserve to be judges and that those that are can do what they like, hurting whomsoever they are instructed to hurt. she has upset Bloomberg and he wants to get certain issues in place before he leaves office so as to make life extremely difficult for the new mayor and carry on having the NYPD being as bias and obnoxious as it can be in certain directions!

"Judge Scheindlin's motion asking the Second Circuit Court of Appeals to withdraw its orders until she's been given a chance to defend herself against its allegations of impropriety and bias has been declined."

We know Judge Scheindlin's name. What are the names of the judges who removed her? They are clearly the ones lacking impartiality. Let's review their case histories!

If biased judges force the recusal of an impartial judge shouldn't there be recourse? It seems like the hammer has much potential to swing both ways (not that I'm saying that possibility is relevant here).

Re:

Motion for En Banc Reconsideration

According to an article yesterday by Mark Hamblett in the New York Law Journal, the plaintiffs in Floyd v. City of New York are asking for reconsideration of the Second Circuit panel's Halloween decision by the full Second Circuit en banc.

The attorneys who represent plaintiffs in Floyd v. City of New York are calling for the three Second Circuit judges who removed Southern District Judge Shira Scheindlin from the stop-and-frisk litigation to be replaced by another panel.

In filings asking for en banc review of the Oct. 31 decision by Second Circuit Judges Jose Cabranes, Barrington Parker Jr. and John Walker Jr. to remove Scheindlin because of comments and interviews she gave and her alleged abuse of the related-case rule, plaintiffs' lawyers say the three judges undermined the appearance of justice themselves . . . .

What about the other judges?

Will any of the other judges in Scheindlin's position want to toady to the appeal court? From what I've heard of lawyer comments, appeals are as much a tit-for-tat game as anything else. "You screw over one of us to show us the appeal court calls the shots, and when I'm assigned to the case, I'll make sure the City is sorry they ever appealed... plus, I'll avoid scrupulously any excuses that let you pull me from the case."

I don't think this article makes clear some of the reasons they made this unusual move. The real appearance of impartiality in this case is not the articles but the colloquy where she tells the litigants why their current legal strategy is bad, how to file a case that would be in their favor and how to attach it to their current case so she could preside over the trial. I can't put everything I want, but here are just some snippets from their opinion:

We believe that a reasonable observer viewing this colloquy would conclude that the appearance of impartiality had been compromised. We do not mean to suggest that a district judge can never engage in a colloquy with a party during which the judge advises the party of its legal or procedural options. However, we think, particularly in combination with the public statements described below, that a reasonable observer could question the impartiality of the judge where the judge described a certain claim that differed from the one at issue in the case before her, urged a party to file a new lawsuit to assert the claim, suggested that such a claim could be viable and would likely entitle the plaintiffs to documents they sought, and advised the party to designate it as a related case so that the case would be assigned to her.

In late May 2013, at the conclusion of the evidence in Floyd, when public interest from reporting on that trial was high, and months before she had produced a decision, Judge Scheindlin made herself available for interviews by the Associated Press, The New Yorker, and the New York Law Journal. The “lede” of the AP article dated May 18, 2013, read “[t]he federal judge presiding over civil rights challenges to the stop-and-frisk practices of the New York Police Department has no doubt where she stands with the government. ‘I know I’m not their favorite judge,’ U.S. District Judge Shira A. Scheindlin said during an Associated Press interview Friday.” The lengthy profile of Judge Scheindlin in The New Yorker, for which she agreed to be interviewed, was titled, “Rights and Wrongs: A Judge Takes on Stop-and-Frisk.” The writer, implying that Judge Scheindlin was aligned with the plaintiffs, wrote,

[t]he primary outlet for Scheindlin’s judicial creativity has been an enduring battle she has fought with the N.Y.P.D. A federal judge since 1994, she has been hearing lawsuits against the police for more than a decade. In decision after decision, she has found that cops have lied, discriminated against people of color, and violated the rights of citizens. Now, in the midst of a mayoral race, with the Democratic candidates united in their opposition to the stop-and-frisk policies of the Bloomberg administration, the Floyd case represents Scheindlin’s greatest chance yet to rewrite the rules of engagement between the city’s police and its people.

and the returns are in ! ! !

from the few reports i've seen, i've no doubt that she wasn't 'pro-defendant', but pro-rights/constitution, AND the kops/persekution hated her for that...

*THAT* is what really sticks in the craw of The They (tm): they don't WANT judges/lawyers/juries to *actually* go by the constitutionality, inequity, etc of unconstitutional laws and bad actors all around in the (in)justice dept, that would be bad for bidness...